Mills v Silver [1990] EWCA Civ 12, reported at [1991] Ch 271, concerned a vehicle right of way acquired through long use and the limits on improving the route. The Court of Appeal recognised the claimed right of way, but held that replacing the existing track with an all-weather stone road exceeded it. The appeal therefore succeeded only in part.
Facts
Mr Silver and Miss Davis owned Coed Major, a rural property near the Black Mountains. They claimed a right to reach the main road with vehicles along a track across adjoining land, Parc-y-Meirch, owned by Mr and Mrs Mills.
A previous occupier, Joe Phillips, had lived at Coed Major from 1922 until shortly before his death in 1981. From the early 1950s, vehicles openly used the disputed track for access whenever occasion arose and its surface was dry enough. A different, longer route was used when the disputed track was too wet. The neighbouring owners knew of the vehicle use and did not stop it; permission had not been sought or granted.
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Silver and Davis acquired Coed Major in 1986. In November 1987, they instructed a contractor to lay between 600 and 700 tons of stone along the disputed track, making it usable by vehicles throughout the year. The Mills objected. The stone road also interfered with their use of the land for grazing pedigree ponies.
Proceedings and issues
The trial judge rejected the claim to a vehicle right of way. He considered the historical use insufficiently continuous and regarded the neighbouring owner’s tolerance as an explanation inconsistent with use as of right. The laying of the stone road was therefore treated as trespass, and damages and an injunction followed.
On appeal, the principal claim was a private easement by prescription based on a presumed lost grant. The court also had to decide whether, even if a right of way existed, it authorised the substantial works carried out on the track.
Tolerance did not defeat prescription
Dillon, Parker and Stocker LJJ agreed that the judge’s approach to tolerance was wrong. Mere acquiescence by an owner who knows about the use, can prevent it and does not intervene is not a defence to a prescriptive claim. It is consistent with use as of right.
The court distinguished tolerating a neighbour’s use from granting a temporary licence or otherwise controlling whether the route could be used. The latter could prevent prescription. Simply saying that the owner had been neighbourly and could have stopped the use did not have the same effect.
The character and extent of the use remained important. Casual or trivial activity would not necessarily indicate the assertion of a continuing right. Here, however, the established vehicle use served Coed Major, followed an identifiable route and continued when occasion and the track’s condition permitted.
A sufficient history of use
The Court of Appeal reconsidered the inference drawn from the trial judge’s primary factual findings. It held that the use during Phillips’s lifetime was sufficient to alert a reasonable neighbouring landowner that a continuing right was being asserted. Daily use, or use in every weather condition, was not required on these facts.
The court presumed a lost grant arising before Phillips’s death. The subsequent period of little use did not defeat that grant or amount to abandonment. It was consequently unnecessary to decide whether the separate claim under the Prescription Act 1832 could overcome the interruption in use immediately before the proceedings.
Silver and Davis were entitled to pass and repass, with or without vehicles, for domestic and agricultural purposes, subject to the scope established by the historical use.
Repair did not authorise the stone road
The right included reasonable repair of the track, such as filling a rut with stones. A repair might incidentally improve the surface, but the works carried out here went much further.
A prescriptive right was measured by the use from which it arose. Turning a track that had been passable only in suitable conditions into an all-weather road increased the burden on the neighbouring land and affected its use for the ponies. The easement did not authorise that transformation. Laying the stone road was therefore still a trespass.
Outcome and significance
The appeal was allowed in part. The court set aside the declaration denying a vehicle right of way, the injunction against Silver and Davis and the dismissal of their counterclaim. It substituted a declaration recognising the limited prescriptive right and power to repair, while declaring that the stone road was unauthorised. The damages awards against all three defendants remained in place.
The case separates acquiring a right through long, tolerated use from enlarging that right through later works. Recognition of an easement did not give its owners unrestricted power to improve the land over which it ran.
